2014 | Henn: German Jurisprudence on Individual Compensation for Victims of Armed Conflicts

For decades, German courts ruled that neither international law nor domestic German law on state liability could serve as a basis for individuals claims for reparations for unlawful harm caused by the German state in war time. However, in 2013 the Court of First instance in Bonn took a different stance adjudicating the Kunduz case.

After the Second World War, the German government adopted the Federal Compensation Law regulating reparations for victims of the Nazi regime. Notwithstanding multiple modifications over time, some categories of victims (e.g. forced labourers living abroad) of the Nazi regime continued to fall outside the scope the act and were denied reparation claims by German Courts, basically on the grounds that:

During the Second World War international law only established a right to reparation to States; not to individuals;

Domestic law can, but is not compelled to, provide for legislation on the individual right to reparation;

The German law on governmental liability in force during the Third Reich, had not been interpreted at that time as applying to sovereign acts carried out in war time.

This line of reasoning was upheld by the German Federal Constitutional Court (FCC) in Varvarin (2013) when it found that neither conventional nor customary International Humanitarian Law (IHL) provide a basis for a right to reparations for individuals. However, the FCC left open the question whether German domestic legislation on governmental liability should be interpreted as applying to sovereign acts in armed conflicts, an issue that was subsequently settled the same year in the Kunduz case.

Kunduz

The Kunduz case arose out of the bombing in 2009 of NATO fuel trucks that were stolen by Taliban fighters and subsequently stranded in the Kunduz region in Afghanistan. Fearing that these tanks would be used for attacks against International Security Assistance Force (ISAF) personnel, a German ISAF commander commanded their bombardment after having tried to distinguish between what were assumed to be Taliban operatives – those nearest the trucks - and civilians near the location but further from the truck. However, the information turned out to be inaccurate and the bombardment caused civilian deaths which formed the basis of the victims’ relatives’ litigation before the German Court of First Instance in Bonn. The claimants argued for their right to reparation, firstly, under international law. The Court dismissed this claim, affirming the non-existence of an individual right to reparations under IHL.[1] The claimants, however, also alleged a right to reparation (compensation) under German domestic law which, to be successful, required the German law on governmental liability to be applicable to unlawful acts performed in war time. Deviating from past judicial rulings, and explaining its position, the Court asserted that it “assumed that governmental liability indeed applies to sovereign acts in war time and that an individual right of claim was conceivable” (see paragraphs 49 ad 50). In other words, it assumed that a breach of IHL norms by German state authorities may lead to liability of the German state to compensate individual victims who had a right to claim such compensation. .[2]

In this article, the author seeks to fill in the gap left by the court, by identifying possible grounds for the Court’s statement on the applicability of German domestic law on governmental liability to state acts performed in war time. Firstly, earlier jurisprudence indicates that sanctioning violations of IHL is the only means of enforcing it. Furthermore, it is noted that accepting such applicability gives effect to the developments in international law on the protection of the individual that have come to permeate Germany’s domestic legal order. The argument that the political question doctrine, according to which courts must refrain from exercising their jurisdiction with regard to political acts of states, would preclude governmental liability for its acts in war time, a stance that de facto denies an individual right to compensation under domestic law.

Despite the fact that German Courts still maintain that IHL does not grant an individual right to reparation, in Kunduz, the Court pointed to the possibility for victims of German unlawful acts in war time to claim reparation on the basis of German domestic law on governmental liability.

Epilogue

After the publication of this article, the Higher Regional Court of Cologne dismissed the claim for compensation on appeal (III ZR 140/15), specifically overruling the Bonn Court’s position on the State liability to provide compensation for wartime acts of the State’s fighting forces abroad. On 6 October 2016 the Federal Court of Justice confirmed that international law does not confer compensatory claims to individuals for the violation of IHL and treats questions of compensation as a purely interstate matter. It held furthermore that, although national law may provide for grounds for compensation, actions within armed conflicts are not covered by the scope of the state liability regime per se. A constitutional complaint was lodged against this judgment on 28 November 2016.

[1] An interesting comparison with Dutch jurisprudence may be seen in the Amsterdam District Court’s decision in Dedovic v. Kok et al. (Judgment of 6 July 2000) [LINK NAAR NF summary invoegen], that recognized the possibility of deriving individual rights from IHL rules for direct victims of IHL violations.

[2] Since the Court found that the German colonel’s decision to bomb the trucks was lawful under applicable international humanitarian law, it did not lead to liability of the German State. Having reached this conclusion, it was unnecessary for the Court to decide whether the fact that the German colonel acted within the framework of a NATO operation, entailed that his conduct was attributable to NATO instead of Germany.